Divorce Trials

A matter of great concern to judges and lawyers is the application of the Civil and Commercial Code to contentious divorce proceedings that are in a process, and also the effects of the new Code about the final decisions handed down in those circumstances.

The Chamber of Appeals of Trelew, Province of Chubut (15/4/2015) resolved that once the judgment of the first instance has been issued, in subsequent judicial cases it will have to be reviewed in the light of the same legal systems under which it was released.

For his part, Julio Rivera (“Application of the Civil and Commercial Code to the judicial processes in process and other issues that should be addressed by Congress”, Rev. La Ley, eg of 5/5/2015), with appointment of Bidart Campos , considers that the law that was in force at the time of the litis lock must be applied, by the principle of congruence, for example, in a divorce initiated by imputation to one of the spouses, which is in process at the time when the CCyCN enters into force, judgment must be issued in accordance with the claims and defenses of the parties; reaffirms its position with some effects that take place at the time of the demand, such as the dissolution of the conjugal society, according to art. 1306 Cod. Civ.

We do not agree with that position because the procedural principles have been relaxed, especially that of congruence, as indicated by the doctrine and jurisprudence (Mabel de Los Santos, “The facts in the process and the flexibility of the principle of congruence” in “The facts in the civil process “work directed by Augusto Mario Morello, ed. La Ley, 2003, ps.59 et seq., Roland Arazi,” Flexibility of the procedural principles “in Revista de Derecho Procesal, ed. Rubinzal-Culzoni, extraordinary number , year 2010, ps 109 and ss), trying that the judge dictates sentence harmonizing the values at stake and prioritizing the one that, in the case, is considered a priority (Ricardo Lorenzetti, “The judge and the difficult sentences. principles and values “, La Ley, 1998-A-1059), especially in matters of Family Law.